Asia Maritime

The US-China Underwater Drone Incident: Parsing the Legal Aspects

February 26, 2017

On
December 15, 2016, a Chinese warship removed from the water a US unmanned underwater vehicle
(UUV) in the Philippines Exclusive Economic Zone (EEZ). The autonomously operating drone had been
deployed by the US Navy oceanographic surveillance ship, the Bowditch. After several days of back and forth
recriminations, the Chinese warship returned the UUV.

US
UUVS can be categorized as Force Net, Sea Shield, Sea Strike and Sea Base.
Force Net includes the missions of Intelligence, Surveillance, and
Reconnaissance (ISR) and Oceanography. Some may even be weaponized. Thus, it is
easy to be uncertain regarding the mission of particular UUVs.

The
UUV in question was apparently an “ocean glider” — a small (6.5 foot long),
energy efficient, winged autonomous underwater remote sensing device. However, one US official said this particular
glider was a Littoral Battle Space Sensing device.

Most
gliders can only move at speeds of up to half a knot and have extremely low
energy demands that allow them to stay at sea for months at a time. The US
maintains the largest glider fleet in the world totaling more than 130 such
craft. Gliders are often “piloted” from land installations through the use of
encrypted satellite communications. They are deployed and can be tracked by
oceanographic vessels like the Bowditch but are not controlled by them.
Significantly, gliders lack the situational awareness needed to avoid
obstacles.

The
US Pentagon said the Bowditch — and the UUV — were carrying out scientific
research in “international waters.” According
to The New York Times, US Navy
spokesman Capt. Jeff Davis said “the drone was seized while collecting
unclassified scientific data.”

According
to Navy lawyers James Kraska and Raul Pedrozo writing in Lawfare, “China’s
action violated three norms embedded in international maritime law and
reflected in the United Nations Convention on the Law of the Sea [UNCLOS] and
other treaties.” These are 1. the UUV is
a “US vessel … operating legitimately at sea;” 2. the vessel “enjoys sovereign
immune status;” and 3. it is “evidence of China’s penchant for disrupting
freedom of navigation on the high seas.”

The
“sovereign immunity” argument was echoed by South China Sea “expert” Gregory
Poling of the Washington DC based Center for Security and International Studies
(CSIS). Bonnie Glaser, another CSIS
South China Sea “expert,” also said “the seizure appeared to be a violation of
international law.” The US Defense Department was more careful saying simply
that the incident was inconsistent with international law and standards of
professionalism.

Let’s
look at these “arguments” piece by piece.

Did the device
have sovereign immunity?

According
to UNCLOS Article 32, whether or not the device has sovereign immunity depends
on whether it is a “warship or a government ship operated for non-commercial
purposes.” The first question is: is the
UUV a “vessel” or perhaps a “ship”? The
terms vessel and ship are frequently used but not defined in UNCLOS. According
to the International Maritime Dictionary, a vessel “is [a] general term for all
craft capable of floating on water and larger than a rowboat.” According to the
Merriam-Webster dictionary, a ship is a large seagoing vessel.

Kraska
and Pedrozo’s argument is that a variety of treaties define “vessel”
sufficiently broadly to include “autonomous and even expendable marine
instruments and devices.” Kraska and Pedrozo cite the International Regulations
for Preventing Collisions at Sea which defines “vessel” as “every description
of water craft … used as a means of transportation on water [presumably of
humans].” Even the US Congress’
definition of “vessel” uses the qualifier “as a means of transportation on
water.” This is unchanged since its adoption
in 1873 and is reiterated in at least 24 federal maritime laws. The UUV in
question is obviously not used as a means of transportation on water. Moreover,
it is not a “warship” because to be so, according to UNCLOS Article 29 it has
to be “manned by a crew”. Thus, it is difficult to understand why the device
would have sovereign immunity.

Was China’s taking
of the device a “theft”?

China’s
Defense Ministry said that its navy had taken an “unidentified object” (the
UUV) out of the water “in order to prevent the device from causing harm to the
safety of navigation and personnel of passing vessels.” It argued that this was
a duty of mariners. According to UNCLOS Article 94 (Duties of the flag state),
“every state shall take such measures for ships flying its flag as are necessary
to ensure safety at sea …” After verifying that the device was an American UUV,
China returned it.

From
its perspective, China’s removal of the drone from the water was not a theft.
Nor was it “evidence of China’s penchant for disrupting freedom of navigation
on the high seas.” On the contrary, it was a professional contribution to the
safety of navigation.

Was the UUV
“operating legitimately at sea”?

First
of all, there is no legal entity in UNCLOS called “international waters.” This
term is an invention of the US Navy and in its vernacular is used to connote
waters that have high seas freedoms. But under UNCLOS, the EEZ does have some
restrictions on freedom of navigation. The incident occurred in the
Philippines-claimed EEZ. Under UNCLOS, “marine scientific research” (MSR) can
only be undertaken in a country’s EEZ with its permission. Moreover, foreign
vessels exercising their rights in a country’s EEZ must have “due regard” for
the rights and duties of the coastal state as well as for the interests of
other states exercising their high seas freedoms.

Philippine
Congressman and international law expert Harry Roque urged the Philippines to
protest the actions of both the US and China in its EEZ. Philippines Secretary
of Defense Delfin Lorenzana said that their presence was “unauthorized” and
that “we have to know what they are doing in our area.” He said that both must
seek Manila’s permission for activities inside its EEZ. Malaysia, Thailand and
India already ban foreign military activities in their EEZs without permission.
All this undermines the US argument that it was operating “legitimately.”

Was the device
undertaking “scientific” research, “hydrographic” research or “military
research”?

This
is important because if it was “scientific” research, it would require the
consent of the Philippines. Despite the Pentagon spokesperson’s statement that
the device was collecting scientific data, the Pentagon and Navy lawyers would
likely argue that it was undertaking hydrographic or military research or
surveys that do not require the permission of the coastal state.

However,
others argue that for intent and purpose, these survey types cannot be neatly
differentiated and have great overlap. They say the very reason that the Convention’s
consent regime is established for MSR is that information collected thereby may
have economic value or may be used to undermine the security of the state. But
some of the scientific information and data obtained by military surveys may be
of great value for commercial exploitation as well as to achieve military
objectives.

Also,
advances in technology and the need for broader “hydrographic” data have
conflated hydrographic surveying with MSR. Indeed, hydrographic data now have
much wider application than safety of navigation and some of its uses are
relevant to the rights and duties of a coastal state in its EEZ. It is becoming
increasingly difficult to argue that hydrographic data collected today will not
have some economic or security value in the future. Thus, similar
considerations would now seem to apply to the conduct of hydrographic surveying
in the EEZ as applied to the conduct of MSR there.

UUVs,
in general, can be used to track “enemy” submarines and even launch missiles
and unmanned aerial vehicles.

In
sum, the distinction between different categories of surveying and MSR hinges
on more than intent and the initial purpose of collecting the data. Indeed, it
seems that the potential economic and security value and utility of the data to
the coastal state should also be considered.

Perhaps
this controversy can be put to rest by a plain reading of UNCLOS Article 258. It
provides that “the deployment and use of any type of scientific research
installation or equipment in any area of the marine environment shall be
subject to the same conditions as are prescribed in this Convention for the
conduct of marine scientific research in any such area.” The Philippines may
well conclude that this applies to the Bowditch and its UUVs in that the deployment
of such equipment in its EEZ requires its consent.

In
sum, technological advances in drones are outstripping international law and
political understandings of acceptable and unacceptable behavior. The
activities of underwater drones are a particular legal “grey area.” Relevant
legal questions are: 1. Whether the “sovereign immunity” clause extends to
drones deployed from but not controlled by state vessels and if so under what
conditions; 2. Does it apply to “non-ratifiers” of UNCLOS like the US; 3. Did
the Bowditch, by deploying the drones in the vicinity of another vessel in the
Philippines EEZ, violate the duty to exercise “due regard” for the rights of
other states, e.g. the duty not to deploy a hazard to navigation; and 4. If the
UUV was being used for “military” or hydrographic research under the guise of “scientific”
research, was it an abuse of rights, which is a violation of UNCLOS?

Both
China and the US are increasingly using UUVs for ISR. US Secretary of Defense
Ashton Carter has stated that the US is deploying “new undersea drones in
multiple sizes and diverse payloads that can, importantly, operate in shallow
water where manned submersibles cannot.” UUVs, in general, can be used to track “enemy” submarines and even
launch missiles and unmanned aerial vehicles (UAVs). Moreover, China thinks the
US wants to use UUVs as a mobile “picket line” to detect and track China’s
nuclear powered and armed submarines coming in and out of Yulin on Hainan.

Drones
and attacks thereon will increasingly become tools in coercive diplomacy
enabling rivals to send a strong signal without directly targeting their human
opponents. There are no formal or informal rules or agreements regarding UUVs.
The US and China should negotiate voluntary guidelines for the use of drones
in, over and especially under waters under foreign jurisdiction.